DEPARTMENT
OF LABOR
Fall 2012 Statement of Regulatory
Priorities
The
Department of Labor's fall 2012 agenda continues Secretary Solis' vision of Good
Jobs for Everyone. It also renews the Labor Department's commitment to
efficient and effective regulation through the review and modification of our
existing regulations, consistent with Executive Order 13563 ("E.O. 13563").
The
Labor Department's vision of a "good job" includes jobs that:
-
Increase
workers' incomes and narrow wage and income inequality;
-
Assure
workers are paid their wages and overtime;
-
Are
in safe and healthy workplaces, and fair and diverse workplaces;
-
Provide
workplace flexibility for family and personal care-giving;
-
Improve
health benefits and retirement security for all workers; and,
-
Assure
workers have a voice in the workplace.
The
Department continues to use a variety of mechanisms to achieve the goal of Good
Jobs for Everyone, including increased enforcement actions, increased
education and outreach, and regulatory actions that foster compliance. At the
same time, the Department is enhancing the efficiency and effectiveness of its
efforts through targeted regulatory actions designed to improve compliance and
burden reduction initiatives. The Department's Plan/Prevent/Protect and
Openness and Transparency compliance strategies and the implementation of E.O.
13563 create unifying themes that seek to foster a new calculus that
strengthens protections for workers. By requiring employers and other
regulated entities to take full ownership over their adherence to Department
regulations and promoting greater openness and transparency for employers and
workers alike, the Department seeks to significantly increase compliance. The
increased effectiveness of this compliance strategy will enable the Department
to achieve the Good Jobs for Everyone goal in a regulatory environment
that is more efficient and less burdensome.
Plan/Prevent/Protect
Compliance Strategy: The regulatory actions that comprise the
Department's Plan/Prevent/Protect strategy are designed to ensure employers and
other regulated entities are in full compliance with the law every day, not
just when Department inspectors come calling. The Plan/Prevent/Protect
strategy was first announced with the Spring 2010 Regulatory Agenda. Employers,
unions, and others who follow the Department's Plan/Prevent/Protect strategy
will assure compliance with employment laws before Labor Department enforcement
personnel arrive at their doorsteps. Most important, they will assure that
workers get the safe, healthy, diverse, family-friendly, and fair workplaces
they deserve. In the Fall 2012 Regulatory Agenda, the Occupational Safety and
Health Administration (OSHA), Mine Safety and Health Administration (MSHA), and
the Office of Federal Contract Compliance Programs (OFCCP) will all propose
regulatory actions furthering the Department's implementation of the
Plan/Prevent/Protect strategy.
Openness
and Transparency - Tools for Achieving Compliance: Greater
openness and transparency continues to be central to the Department's
compliance and regulatory strategies. The fall 2012- regulatory plan
demonstrates the Department's continued commitment to conducting the people's
business with openness and transparency, not only as good Government and
stakeholder engagement strategies, but as important means to achieve compliance
with the employment laws administered and enforced by the Department. Openness
and transparency will not only enhance agencies' enforcement actions but will
encourage greater levels of compliance by the regulated community and enhance
awareness among workers of their rights and benefits. When employers, unions,
workers, advocates, and members of the public have greater access to
information concerning workplace conditions and expectations, then we all
become partners in the endeavor to create Good Jobs for Everyone.
Risk
Reduction: The Department believes Plan/Prevent/Protect
and increased Openness and Transparency will result in improvements to worker
health and safety; fair pay, earned overtime compensation, secure benefits;
fair, diverse and family-friendly environments that provide workplace
flexibility for family and personal care-giving However, when the Department
identifies specific hazards and risks to worker health, safety, security, or
fairness, the Department will utilize its regulatory powers to limit the risk
to workers. The Fall 2012 Regulatory Agenda includes examples of such
regulatory initiatives to address such specific concerns, many of which are
discussed in this document.
Retrospective
Review of Existing Rules: The Fall 2012
Regulatory Agenda aims to achieve more efficient and less burdensome regulation through retrospective review of Labor Department regulations.
On January 18, 2011, the President issued Executive Order (E.O.) 13563 entitled
"Improving Regulation and Regulatory Review." The E.O. aims to "strike the
right balance" between what is needed to protect health, welfare, safety, and
the environment for all Americans, and what is needed to foster economic
growth, job creation, and competitiveness.
In
August 2011, as part of a Government wide response to E.O. 13563, the
Department published its Plan for Retrospective Analysis of Existing Rules,
which identifies several burden-reducing review projects. On March 26, 2012
OSHA published the Hazard Communication/Globally Harmonized System for
Classification and Labeling of Chemicals final rule. Cost savings for
employers from productivity improvements arising from the rule were estimated
to be $507.2 million annually. The estimated net benefits of the rule are $556
million annually. EBSA's Abandoned Plan Program, results in an estimated
$500,000 savings, and expanding the program will provide substantial benefits
to plans of sponsors in bankruptcy liquidation and bankruptcy trustees while
imposing minimal costs ($64,000). These projects estimate monetized
savings that would eliminate between roughly $580 to $790 million in annual
regulatory burdens. Proposals such as OSHA's Standard Improvement Project -
Phase IV (SIP IV) and Revocation of Certification Records are expected to produce
additional savings. Several non-regulatory actions are expected to have similar
results.
The Department is also taking action to eliminate regulations that are no
longer effective or enforceable. This effort will include removal of the Job
Training Partnership Act program requirements; attestation requirements by
facilities using nonimmigrant aliens as registered nurses as implemented
through the Immigration Nursing Relief Act of 1999; and, attestation requirements
by employers using F-1 students in off-campus work as authorized by the
supplementing sections of Immigration Act of 1990. It will also include
removal of regulatory actions that are no longer enforceable, including labor
certification process requirements for logging employment and non-H-2A
agricultural employment. In total, this agenda includes 10 review projects ---
that is, more than 13 percent of all the Department's planned regulatory
actions.
Pursuant to section 6 of E.O. 13563,
the following Regulatory Identifier Numbers (RINs) are associated with the
Department's Plan for Retrospective Analysis of Existing Rules. More
information about completed rulemakings, which are no longer included in the
plan, can be found on Reginfo.gov. The original August 2011 DOL Plan for
Retrospective Analysis of Existing Rules and subsequent quarterly updates can
be found at: http://www.dol.gov/regulations/
Regulatory
Identifier Number
|
Title of
Rulemaking
|
Whether
it is Expected to Significantly Reduce Burdens on Small Businesses
|
1218-AC34
|
Bloodborne Pathogens
|
No
|
1218-AC77
|
Updating OSHA Standards Based on National Consensus
Standards (Signage)
|
No
|
1218-AC67
|
Standard Improvement Project - Phase IV (SIP IV)
|
Yes
|
1218-AC75
|
Cranes and Derricks in Construction: Revision to Digger
Derricks' Requirements
|
Yes
|
1218-AC74
|
Review/Lookback of OSHA Chemical Standards
|
To Be Determined
|
1218-AC80
|
Revocation
of Certification Records
|
To Be Determined
|
1219-AB72
|
Criteria and Procedures for Proposed Assessment of Civil
Penalties (Part 100)
|
To Be Determined
|
1250-AA05
|
Sex Discrimination Guidelines
|
To Be Determined
|
1210-AB47
|
Amendment of Abandoned Plan Program
|
Yes
|
1205-AB59
|
Equal Employment Opportunity in Apprenticeship and
Training, Amendment of Regulations
|
To Be Determined
|
1205-AB62
|
Implementation of Total Unemployment Rate Extended
Benefits Trigger and Rounding Rule
|
No
|
1205-AB68
|
Job Training Partnership Act; Removal of JTPA
|
No, action will not increase burden to small businesses
as regulatory provisions are no longer operative
|
1205-AB65
|
Labor Certification Process for Logging Employment and
Non-H-2A Agricultural Employment
|
No, action will not increase burden to small businesses
as regulatory provisions are no longer operative
|
1205-AB66
|
Attestations by Employers Using F-1 Students in
Off-Campus Work
|
No, action will not increase burden to small businesses
as regulatory provisions are no longer operative
|
1205-AB67
|
Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
|
No, action will not increase burden to small businesses
as regulatory provisions are no longer operative
|
|
|
|
Occupational Safety and Health Administration (OSHA)
OSHA's
regulatory program is designed to help workers and employers identify hazards
in the workplace, prevent the occurrence of injuries and adverse health
effects, and communicate with the regulated community regarding hazards and how
to effectively control them. Long-recognized health hazards and emerging
hazards place American workers at risk of serious disease and death and are
initiatives on OSHA's regulatory agenda. In addition to targeting specific
hazards, OSHA is focusing on systematic processes that will modernize the
culture of safety in America's workplaces and retrospective review projects that
will update regulations and reduce burdens on regulated communities. OSHA's
retrospective review projects under E.O.13563 include consideration of the
Bloodborne Pathogens standard, updating consensus standards, phase IV of OSHA's
standard improvement project (SIP IV), and reviewing various permissible
exposure levels.
Plan/Prevent/Protect
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Infectious Diseases OSHA is considering
the need for regulatory action to address the risk to workers exposed to
infectious diseases in healthcare and other related high-risk environments.
OSHA is interested in all routes of infectious disease transmission in
healthcare settings not already covered by its bloodborne pathogens standard
(e.g. contact, droplet, and airborne) The agency is particularly concerned by
studies that indicate that transmission of infectious diseases to both patients
and healthcare workers may be occurring as a result of incomplete adherence to
recognized, but voluntary, infection control measures. The agency is
considering an approach that would combine elements of the Department's
Plan/Prevent/Protect strategy with established infection control practices. The
agency received strong stakeholder participation in response to its May 2010
request for information and July 2011 stakeholder meetings.
In
2007, the healthcare and social assistance sector as a whole had 16.5 million
employees. Healthcare workplaces can range from small private
practices of physicians to hospitals that employ thousands of workers. In
addition, healthcare is increasingly being provided in other settings such as
nursing homes, free-standing surgical and outpatient centers, emergency care
clinics, patients' homes, and pre-hospitalization emergency care settings. OSHA
is concerned with the movement of healthcare delivery from the traditional
hospital setting, with its greater infrastructure and resources to effectively
implement infection control measures, into more diverse and smaller workplace
settings with less infrastructure and fewer resources, but with an expanding
worker population.
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Injury and illness Prevention Program: OSHA's
Injury and Illness Prevention Program is the prototype for the Department's
Plan/Prevent/Protect strategy. OSHA's first step in this important rulemaking
was to hold stakeholder meetings. Stakeholder meetings were held in East
Brunswick, NJ; Dallas, Texas; Washington, DC; and Sacramento, California,
beginning in June 2010 and ending in August 2010. More than 200 stakeholders
participated in these meetings, and in addition, nearly 300 stakeholders
attended as observers. The proposed rule will explore requiring employers to
provide their employees with opportunities to participate in the development
and implementation of an injury and illness prevention program, including a
systematic process to proactively and continuously address workplace safety and
health hazards. This rule will involve planning, implementing, evaluating, and
improving processes and activities that promote worker safety and health
hazards. OSHA has substantial evidence showing that employers that have
implemented similar injury and illness prevention programs have significantly
reduced injuries and illnesses in their workplaces. The new rule would build on
OSHA's existing Safety and Health Program Management Guidelines and lessons
learned from successful approaches and best practices that have been applied by
companies participating in OSHA's Voluntary Protection Program and Safety and
Health Achievement Recognition Program, and similar industry and international
initiatives.
Openness
and Transparency
-
Modernizing Recordkeeping: OSHA
held informal meetings to gather information from experts and stakeholders
regarding the modification of its current injury and illness data collection
system that will help the agency, employers, employees, researchers, and the
public prevent workplace injuries and illnesses, as well as support President
Obama's Open Government Initiative. Under the proposed rule, OSHA will explore
requiring employers to electronically submit to the Agency data required by
part 1904 (Recording and Reporting Occupational Injuries). The proposed rule
will enable OSHA to conduct data collections ranging from the periodic
collection of all part 1904 data from a handful of employers to the annual
collection of summary data from many employers. OSHA learned from stakeholders
that most large employers already maintain their part 1904 data electronically;
as a result, electronic submission will constitute a minimal burden on these
employers, while providing a wealth of data to help OSHA, employers, employees,
researchers, and the public prevent workplace injuries and illnesses. The
proposed rule also does not add to or change the recording criteria or
definitions in part 1904. The proposed rule only modifies employers'
obligations to transmit information from these records to OSHA.
-
Whistleblower Protection Regulations: The
ability of workers to speak out and exercise their legal rights without fear of
retaliation is essential to many of the legal protections and safeguards that
all Americans value. Whether the goal is the safety of our food, drugs,
or workplaces, the integrity of our financial system, or the security of our
transportation systems, whistleblowers have been essential to ensuring that our
laws are fully and fairly executed. In the fall regulatory agenda, OSHA proposes
to issue procedural rules that will establish consistent and transparent
procedures for the filing of whistleblower complaints under eight statutes as
discussed in the regulatory agenda. These procedural rules will strengthen
OSHA's enforcement of its whistleblower program by providing specific
timeframes and guidance for filing a complaint with OSHA, issuing a finding,
avenues of appeal, and allowable remedies.
Risk
Reduction
-
Silica: In order to target one of
the most serious hazards workers face, OSHA is proposing to address worker
exposures to crystalline silica through the promulgation and enforcement of a
comprehensive health standard. Exposure to silica causes silicosis, a
debilitating respiratory disease, and may cause cancer, other chronic
respiratory diseases, and renal and autoimmune disease as well. The seriousness
of the health hazards associated with silica exposure is demonstrated by the
large number of fatalities and disabling illnesses that continue to occur.
Over 2 million workers are exposed to crystalline silica in general industry,
construction, and maritime industries. Reducing these hazardous exposures
through promulgation and enforcement of a comprehensive health standard will
contribute to OSHA's goal of reducing occupational fatalities and illnesses. As
a part of the Secretary's strategy for securing safe and healthy workplaces,
MSHA will also utilize information provided by OSHA to undertake regulatory
action related to silica exposure in mines.
-
Preventing Backover Injuries and Fatalities: Workers
across many industries face a serious hazard when vehicles perform backing
maneuvers, especially vehicles with an obstructed view to the rear. OSHA is
collecting information on this hazard and researching emerging technologies
that may help to reduce this risk. NIOSH reports, for example, that one-half
of the fatalities involving construction equipment occur while the equipment is
backing. Backing accidents cause at least 60 occupational deaths per year.
Emerging technologies that address the risks of backing operations include
cameras, radar, and sonar-to help view or detect the presence of workers on
foot in blind areas-and new monitoring technology, such as tag-based warning
systems that use radio frequency (RFID) and magnetic field generators on
equipment to detect electronic tags worn by workers. Along with MSHA, which is
developing regulations concerning Proximity Detection Systems, and based on
information collected and the Agency's review and research, the Agency may consider
rulemaking as an appropriate measure to address this source of employee risk.
The Agency published an RFI on March 27, 2012 seeking information from the
public; the comment period ended on July 27, 2012.
-
Reinforced Concrete in Construction: OSHA
has published an RFI seeking information about the hazards associated with
reinforcing operation in construction. Current rules regarding reinforcing
steel and post-tensioning activities may not adequately address worker hazards
in work related to post-tensioning and reinforcing steel. Both are techniques
for reinforcing concrete and are generally used in commercial and industrial
construction. OSHA currently has few rules which address the steel reinforcing
and post-tensioning fields directly. The few rules that do exist are found in
subpart Q - Concrete and Masonry Construction of 29 CFR 1926. OSHA IMIS data
indicates that 31 workers died while performing work on or near post-tensioning
operations or reinforcing steel between 2000 and 2009. The use of reinforced
steel and post-tensioned poured in place concrete in commercial and industrial
construction is expected to rise. Without adequate standards, the rate of
accidents will likely rise as well. Currently, workers performing steel
reinforcing suffer injuries caused by unsafe material handling, structural
collapse, and impalement by protruding reinforcing steel dowels, among others.
Employees involved in post-tensioning activities are at risk for incidents
caused by the misuse of post-tensioning equipment and improper training.
Regulatory Review and
Burden Reduction
-
Bloodborne Pathogens: OSHA will undertake
a review of the Bloodborne Pathogen Standard in accordance with the
requirements of the Regulatory Flexibility Act, section 5 of Executive Order
12866, and E.O. 13563. The review will consider the continued need for the
rule; whether the rule overlaps, duplicates, or conflicts with other Federal,
State or local regulations; and the degree to which technology, economic
conditions, or other factors may have changed since the rule was evaluated.
-
Updating OSHA Standards Based on National Consensus
Standards-Signage: Under section 6(a) of the OSH Act, during
the first 2 years of the Act, the Agency was directed to adopt national
consensus standards as OSHA standards. In the more than 40 years since these
standards were adopted by OSHA, the organizations responsible for these
consensus standards have issued updated versions of these standards. However,
in most cases, OSHA has not revised its regulations to reflect later editions
of the consensus standards. This project is part of a multi-year project to
update OSHA standards that are based on consensus standards. On June 22nd,
OSHA published a Direct Final Rule (DFR) and Notice of Proposed Rulemaking
(NPRM) addressing OSHA's Head Protection standards. The Agency received no
significant adverse comment, and the standards went into effect September 20,
2012. On (insert date prior to October) OSHA published another DFR/NPRM
Consensus Standard addressing signage.
-
Standard Improvement Project-- Phase IV (SIP IV): OSHA's
Standards Improvement Projects (SIPs) are intended to remove or revise
duplicative, unnecessary, and inconsistent safety and health standards. The
Agency has published three earlier final standards to remove unnecessary
provisions, thus reducing costs or paperwork burden on affected employers. The
Agency believes that these standards have reduced the compliance costs and
eliminated or reduced the paperwork burden for a number of its standards. The
Agency only considers such changes to its standards so long as they do not
diminish employee protections. The Agency initiated a fourth rulemaking effort
to identify unnecessary or duplicative provisions or paperwork requirements
that is focused primarily on revisions to its construction standards in 29 CFR
1926.
-
Cranes and Derricks in Construction: Revision to Digger
Derricks' Requirements: OSHA published its final Cranes and
Derricks in Construction Standard in August 2010. Edison Electric Institute
(EEI) filed a petition for review challenging several aspects of the standard,
including the scope of the exemption for digger derricks. As part of the
settlement agreement with EEI, OSHA agreed to publish a direct final rule
expanding the scope of a partial exemption for work by digger derricks. In the
direct final rule, OSHA will revise the scope provision on digger derricks as
an exemption for all work done by digger derricks covered by subpart V of 29
CFR 1926. The change in scope will result in an estimated cost savings of
$21.6 million annually.
-
Review-Lookback of OSHA Chemical Standards: The
majority of OSHA's Permissible Exposure Limits (PELs) were adopted in 1971
under section 6(a) of the OSH Act, and only a few have been successfully
updated since that time. There is widespread agreement among industry, labor,
and professional occupational safety and health organizations that OSHA's PELs
are outdated and need revising in order to take into account newer scientific
data that indicate that significant occupational health risks exist at levels
below OSHA's current PELs. In 1989, OSHA issued a final standard that lowered
PELs for over 200 chemicals and added PELs for 164. However, the final rule
was challenged and ultimately vacated by the 11th Circuit Court of
Appeals in 1991 citing deficiencies in OSHA's analyses. Since that time, OSHA
has made attempts to examine its outdated PELs in light of the Court's 1991
decision. Most recently, OSHA sought input through a stakeholder meeting and
web forum to discuss various approaches that might be used to address its
outdated PELs. As part of the Department's Regulatory Review and Lookback
Efforts, OSHA is developing a Request for Information (RFI), seeking input from
the public to help the Agency identify effective ways to address occupational
exposure to chemicals.
-
Confined Spaces in Construction: In
1993, OSHA issued a rule to protect employees who enter confined spaces while
engaged in general industry work (29 CFR 1910.146). This standard did not
address confined space entry in construction. Pursuant to discussions with the
United Steel Workers of America that led to a settlement agreement regarding
the general industry standard, OSHA agreed to issue a proposed rule to protect
construction workers in confined spaces. The proposed rule for confined
spaces in construction was published in 2007, public hearings were held in
2008.
Mine Safety and Health Administration (MSHA)
The Mine Safety and Health Administration is the worker
protection agency focused on the prevention of death, disease, and injury from
mining and the promotion of safe and healthful workplaces for the Nation's
miners. The Department believes that every worker has a right to a safe and
healthy workplace. Workers should never have to sacrifice their lives for their
livelihood, and all workers deserve to come home to their families at the end
of their shift safe and whole. MSHA's approach to reducing workplace fatalities
and injuries includes promulgating and enforcing mandatory health and safety
standards. MSHA's retrospective review project under E.O.13563 addresses
revising the process for proposing civil penalties.
Plan/Prevent/Protect
-
Proximity Detection Systems for Continuous Mining
Machines in Underground Coal Mines: MSHA published a proposed
rule to address the danger that miners face when working near continuous mining
machines in underground coal mines. MSHA has concluded, from investigations of
accidents involving mobile equipment and other reports, that action was
necessary to protect miners. From 1984 to 2012, there have been 32 fatalities
resulting from pinning, crushing or striking accidents involving continuous
mining machines. Proximity detection technology can prevent these types of
accidents. Proximity detection systems can be installed on mining machinery to
detect the presence of personnel or equipment within a certain distance of the
machine. The rule would strengthen the protection for underground miners by
reducing the potential for pinning, crushing, or striking hazards associated
with working close to continuous mining machines.
-
Proximity Detection Systems for Mobile Machines in
Underground Mines: MSHA plans to publish a proposed rule to
require underground coal mine operators to equip shuttle cars, coal hauling
machines, continuous haulage systems, and scoops with proximity detection
systems. Miners working near these machines face pinning, crushing, and
striking hazards that have resulted, and continue to result, in accidents
involving life threatening injuries and death. The proposal would strengthen
protections for miners by reducing the potential for pinning, crushing, or
striking accidents in underground mines.
Openness and Transparency
-
Pattern of Violations: MSHA has determined
that the existing pattern criteria and procedures contained in 30 CFR part 104
do not reflect the statutory intent for section 104(e) of the Federal Mine
Safety and Health Act of 1977 (Mine Act). The legislative history of the Mine
Act explains that Congress intended the pattern of violations to be an
enforcement tool for operators who have demonstrated a disregard for the health
and safety of miners. These mine operators, who have a chronic history of
persistent significant and substantial (S&S) violations, needlessly expose
miners to the same hazards again and again. This indicates a serious safety
and health management problem at a mine. The goal of the pattern of violations
final rule is to compel operators to manage health and safety conditions so
that the root causes of S&S violations are found and fixed before they
become a hazard to miners. The final rule would reflect statutory intent,
simplify the pattern of violations criteria, and improve consistency in
applying the pattern of violations criteria. MSHA developed an online service
that enables mine operators, miners, and others to monitor a mining operation
to determine if the mine could be approaching a potential pattern of
violations. The web tool contains the specific criteria that MSHA uses to
review a mine for a potential pattern of violations. The pattern of violations
monitoring tool promotes openness and transparency in government.
-
Notification of Legal Identity: The
existing requirements do not provide sufficient information for MSHA to
identify all of the mine ''operators'' responsible for operator safety and
health obligations under the Federal Mine Safety and Health Act of 1977, as
amended. This proposed regulation would expand the information required to be
submitted to MSHA to create more transparent and open records that would allow
the Agency to better identify and focus on the most egregious or persistent
violators and more effectively deter future violations by imposing penalties
and other remedies on those violators.
Risk Reduction
-
Lowering Miners' Exposure to Coal Mine
Dust, including Continuous Personal Dust Monitors: MSHA
will continue its regulatory action related to preventing Black Lung disease.
Data from the NIOSH indicate increased prevalence of coal workers
pneumoconiosis (CWP) "clusters" in several geographical areas, particularly in
the Southern Appalachian Region. MSHA published a notice of proposed
rulemaking to address continued risk to coal miners from exposure to respirable
coal mine dust. This regulatory action is part of MSHA's Comprehensive Black
Lung Reduction Strategy for reducing miners' exposure to respirable dust. This
strategy includes enhanced enforcement, education and training, and health
outreach and collaboration.
-
Regulatory Actions in Response to Recommendations
Resulting From the Investigation of the Upper Big Branch Explosion: On
April 5, 2010, a massive coal dust explosion occurred a the Upper Big Branch
Mine. Following the explosion, MSHA conducted its investigation under the
authority of the Federal Mine Safety and Health Act of 1977, for the purpose of
obtaining, using, and disseminating information relating to the causes of
accidents. The accident report included recommendations for regulatory actions
to prevent a recurrence of this type of accident. MSHA also conducted an
internal review (IR) into the Agency's actions leading up to the explosion.
The IR report also included recommendations for regulatory actions. In
response to the recommendations, MSHA will address issues associated with rock
dusting, ventilation, the operator's responsibility for certain mine
examinations and certified persons.
-
Respirable Crystalline Silica Standard: The
Agency's regulatory actions also exemplify a commitment to protecting the most
vulnerable populations while assuring broad-based compliance. Health hazards
are pervasive in both coal and metal/nonmetal mines, including surface and
underground mines and large and small mines. As mentioned previously, as part
of the Secretary's strategy for securing safe and healthy workplaces, both MSHA
and OSHA will be undertaking regulatory actions related to silica.
Overexposure to crystalline silica can result in some miners developing
silicosis, an irreversible but preventable lung disease, which ultimately may
be fatal. In its proposed rule, MSHA plans to follow the recommendations of
the Secretary of Labor's Advisory Committee on the Elimination of
Pneumoconiosis Among Coal Mine Workers, the National Institute for Occupational
Safety and Health (NIOSH), and other groups to address the exposure limit for
respirable crystalline silica. As another example of intra-departmental
collaboration, MSHA intends to consider OSHA's work on the health effects of
occupational exposure to silica and OSHA's risk assessment in developing the
appropriate standard for the mining industry.
Regulatory Review and Burden
Reduction
-
Criteria and Procedures for Proposed Assessment of Civil
Penalties (Part 100): MSHA plans to publish a proposed rule to
revise the process for proposing civil penalties. The assessment of civil
penalties is a key component in MSHA's strategy to enforce safety and health
standards. The Congress intended that the imposition of civil penalties would
induce mine operators to be proactive in their approach to mine safety and
health, and take necessary action to prevent safety and health hazards before
they occur. MSHA believes that the procedures for assessing civil penalties
can be revised to improve the efficiency of the Agency's efforts and to
facilitate the resolution of enforcement issues.
Office of Federal Contract Compliance Programs (OFCCP)
Through
the work of OFCCP, DOL ensures that contractors and subcontractors doing
business with the Federal Government provide equal employment opportunity and
take affirmative action to create fair and diverse workplaces. OFCCP also
combats discrimination based on race, color, religion, sex, national origin,
disability, or status as a protected veteran by ensuring that federal
contractors recruit, hire, train, promote, terminate, and compensate workers in
a nondiscriminatory manner. DOL, through OFCCP, protects workers, promotes diversity
and enforces civil rights laws.
Plan/Prevent/Protect
-
Construction Contractor Affirmative Action Requirements: OFCCP
plans to publish a proposed rule that would enhance the effectiveness of the
affirmative action programs of Federal and federally assisted construction
contractors and subcontractors. The existing regulations provide that the
Director is to issue goals and timetables for the utilization of minorities and
women based on appropriate workforce, demographic or other relevant data. The
existing minority goals for construction were issued in a 1980 based on 1970
Census data, the most current data available at the time. The goals for the
utilization of women in the construction occupations were issued in 1978, and
extended indefinitely in 1980, are were also developed using 1970 Census data.
The proposed rule would remove these outdated goals and instead give
contractors increased flexibility to assess their workforce and determine
whether disparities in the utilization of women or the utilization of a
particular racial or ethnic group in an on-site construction job group exist.
The proposed rule would also provide contractors and subcontractors the tools
to assess their progress and appropriately tailor their affirmative action
plans. The proposed rule would strengthen affirmative action programs
particularly in the areas of recruitment, training, and apprenticeships. The
proposed rule would also allow contractors and subcontractors to focus on their
affirmative action obligations earlier in the contracting process. OFCCP is
coordinating with the Employment and Training Administration (ETA), which is
developing a proposed regulation revising the equal opportunity regulatory
framework under the National Apprenticeship Act.
Regulatory
Review and Burden Reduction
-
Sex Discrimination Guidelines: OFCCP proposes updating regulations setting forth contractors'
obligations not to discriminate on the basis of sex under Executive Order
11246, as amended. The Sex Discrimination
Guidelines, found at 41 CFR Part 60-20, have not been updated in more than 30
years and warrants a regulatory lookback. Since that time, the nature and
extent of women's participation in the labor force and employer policies and
practices have changed significantly. In addition, extensive changes in the
law regarding sex-based employment discrimination have taken place. Title VII
of the Civil Rights Act of 1964, which generally governs the law of sex-based
employment discrimination, has been amended twice. The nondiscrimination
requirement of the Sex Discrimination
Guidelines also applies to contractors and subcontractors performing under
federally assisted construction contracts. OFCCP will issue a Notice of
Proposed Rulemaking to create sex discrimination regulations that reflect the
current state of the law in this area.
Employee Benefits Security Administration (EBSA)
The Employee Benefits Security
Administration (EBSA) is responsible for administering and enforcing the fiduciary,
reporting and disclosure, and health coverage provisions of title I of the
Employee Retirement Income Security Act of 1974 (ERISA). This includes recent
amendments and additions to ERISA enacted in the Pension Protection Act of
2006, as well as new health coverage provisions under the Patient Protection
and Affordable Care Act of 2010 (the Affordable Care Act). EBSA's regulatory
plan initiatives are intended to improve health benefits and retirement
security for workers in every type of job at every income level. EBSA is
charged with protecting approximately 140 million Americans covered by an
estimated 707,000 private retirement plans, 2.3 million health plans, and
similar numbers of other welfare benefit plans, which together hold $6.7 trillion
in assets.
EBSA
will continue to issue guidance implementing the health reform provisions of
the Affordable Care Act to help provide better quality health care for American
workers and their families. EBSA's regulations reduce discrimination in health
coverage, promote better access to quality coverage, and protect the ability of
individuals and businesses to keep their current health coverage. Many
regulations are joint rulemakings with the Departments of Health and Human
Services and the Treasury.
Using
regulatory changes to produce greater openness and transparency is an integral
part of EBSA's contribution to a department-wide compliance strategy. These
efforts will not only enhance EBSA's enforcement toolbox but will encourage
greater levels of compliance by the regulated community and enhance awareness
among workers of their rights and benefits. Several proposals from the EBSA
agenda expand disclosure requirements, substantially enhancing the availability
of information to employee benefit plan participants and beneficiaries and
employers, and strengthening the retirement security of America's workers. EBSA's
retrospective review project under E.O.13563 is Abandoned Plan Program amendments.
Risk Reduction
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Health Reform Implementation: Since
the passage of health care reform, EBSA has helped put the employment-based
health provisions into action. Working with HHS and Treasury, EBSA has issued
regulations covering issues such as the elimination of preexisting condition
exclusions for children under age 19, internal and external appeals of benefit
denials, the extension of coverage for children up to age 26, and a ban on
rescissions (which are retroactive terminations of health care coverage).
These regulations will eventually impact up to 138 million Americans in
employer-sponsored plans. EBSA will continue its work in this regard, to
ensure a smooth implementation of the legislation's market reforms, minimizing
disruption to existing plans and practices, and strengthening America's health
care system.
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Enhancing Participant Protections: EBSA
plans to re-propose amendments to its regulations to clarify the circumstances
under which a person will be considered a "fiduciary" when providing
investment advice to retirement plans and other employee benefit plans and
participants and beneficiaries of such plans. The amendments would take into
account current practices of investment advisers and the expectations of plan
officials and participants who receive investment advice. This initiative is
intended to assure retirement security for workers in all jobs regardless of
income level by ensuring that financial advisers and similar persons are
required to meet ERISA's standards of care when providing the investment advice
that is relied upon by millions of plan sponsors and workers.
Promoting
Openness and Transparency
In addition to its health care reform
and participant protection initiatives discussed above, EBSA is pursuing a
regulatory program that, as reflected in the Unified Agenda, is designed to
encourage, foster, and promote openness, transparency, and communication with respect
to the management and operations of pension plans, as well as participant
rights and benefits under such plans. Among other things, EBSA will be issuing
a final rule addressing the requirement that administrators of defined benefit
pension plans annually disclose the funding status of their plan to the plan's
participants and beneficiaries (RIN l210-AB18). In addition, EBSA will be
finalizing amendments to the disclosure requirements applicable to plan
investment options, including Qualified Default Investment Alternatives, to
better ensure that participants understand the operations and risks associated
with investments in target date funds (RIN 1210-AB38).
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Lifetime Income Options: EBSA
in 2010 published a request for information concerning steps it can take by
regulation, or otherwise, to encourage the offering of lifetime annuities or
similar lifetime benefit distribution options for participants and
beneficiaries of defined contribution plans. EBSA also held a hearing with the
Department of the Treasury and Internal Revenue Service to further explore
these possibilities. This initiative is intended to assure retirement security
for workers in all jobs regardless of income level by helping to ensure that
participants and beneficiaries have the benefit of their plan savings throughout
retirement. EBSA now has established a public record which supports further
consideration or action in a number of areas including pension benefit statements,
participant education, and fiduciary guidance. With regard to pension benefit
statements specifically, EBSA is developing an advance notice of proposed
rulemaking under ERISA section 105 relating to the presentation of a
participant's accrued benefits; i.e., the participant's account balance, as a
lifetime income stream of payments, in addition to presenting the benefits as
an account balance.
Regulatory
Review and Burden Reduction
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Abandoned Plan Program Amendment: In
2006, the Department published regulations that facilitate the termination and
winding up of 401(k)-type retirement plans that have been abandoned by their
plan sponsors. The regulation establishes a streamlined program under
which plans are terminated with very limited involvement of EBSA regional offices.
EBSA now has six years of experience with this program and believes certain
changes would improve the overall efficiency of the program and increase its
usage. EBSA expects that the cost burden reduction that will result from this
initiative will be approximately $500,000, because the prompt, efficient
termination of abandoned plans will eliminate future administrative expenses
charged to the plans that otherwise would diminish plan assets. Moreover, by
following the specific standards and procedures set forth in the rule, the
Department expects that overall plan termination costs will be reduced due to
increased efficiency.
EBSA intends to revise the
regulations to expand the program to include plans of businesses in liquidation
proceedings to reflect recent changes in the U.S. Bankruptcy Code. The
Department believes that this expansion has the potential to substantially
reduce burdens on these plans and bankruptcy trustees. Plans of businesses in
liquidation currently do not have the option of using the streamlined
termination and winding-up procedures under the program. This is true even
though bankruptcy trustees, pursuant to the Bankruptcy Code, can have a legal
duty to administer the plan. Thus, bankruptcy trustees, who often are
unfamiliar with applicable fiduciary requirements and plan-termination
procedures, presently have little in the way of a blueprint or guide for
efficiently terminating and winding-up such plans. Expanding the program to
cover these plans will allow eligible bankruptcy trustees to use the
streamlined termination process to better discharge their obligations under the
law. The use of streamlined procedures will reduce the amount of time and
effort it would take ordinarily to terminate and wind up such plans. The
expansion also will eliminate Government filings ordinarily required of
terminating plans. Participation in the program will reduce the overall cost
of terminating and winding-up such plans, which will result in larger benefit
distributions to participants and beneficiaries in such plans. EBSA estimates
that approximately 165 additional plans will benefit from the Amended Abandoned
Plan Program allowing bankruptcy trustees to participate in the program. As
explained above, the current Abandoned Plan Program results in an estimated
$500,000 savings for plans terminated pursuant to that program, and we believe
the amendment expanding the program will provide substantial benefits to plans
of sponsors in Chapter 7 bankruptcy liquidation and bankruptcy trustees through
the orderly termination of plans, less service provider fees, and preservation
of assets for participants and beneficiaries, while imposing minimal costs
($64,000).
Office of Labor-Management Standards (OLMS)
The Office
of Labor-Management Standards (OLMS) administers and enforces most provisions
of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA
promotes labor-management transparency by requiring unions, employers,
labor-relations consultants, and others to file reports, which are publicly
available. The LMRDA includes provisions protecting union member rights to
participate in their union's governance, to run for office and fully exercise
their union citizenship, as well as procedural safeguards to ensure free and
fair union elections. Besides enforcing these provisions, OLMS also ensures the
financial accountability of unions, their officers and employees, through
enforcement and voluntary compliance efforts. Because of these activities, OLMS
better ensures that workers have a more effective voice in the governance of
their unions, which in turn affords them a more effective voice in their
workplaces. OLMS also administers Executive Order 13496, which requires Federal
contractors to notify their employees concerning their rights to organize and
bargain collectively under Federal labor laws.
Openness
and Transparency
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Persuader Agreements - Employer and Labor Relations
Consultant Reporting under the LMRDA: OLMS published a proposed
regulatory initiative in June 2011, which is a transparency regulation intended
to provide workers with information critical to their effective participation
in the workplace. The proposed regulations would better implement the public
disclosure objectives of the LMRDA in situations where an employer engages a
consultant in order to persuade employees concerning their rights to organize
and bargain collectively. Under LMRDA section 203, an employer must report any
agreement or arrangement with a consultant to persuade employees concerning
their rights to organize and collectively bargain, or to obtain certain
information concerning activities of employees or a labor organization in
connection with a labor dispute involving the employer. The consultant is also
required to report such an agreement or arrangement with an employer.
Statutory exceptions to these reporting requirements are set forth in LMRDA
section 203(c), which provides, in part, that employers and consultants are not
required to file a report by reason of the consultant's giving or agreeing to
give "advice" to the employer. The Department in its proposal reconsidered the
current policy concerning the scope of the "advice" exception. When workers
have the necessary information about arrangements that have been made by their
employer to persuade them whether or not to form, join, or assist a union, they
are better able to make a more informed choice about representation.
Employment and Training Administration (ETA)
The
Employment and Training Administration (ETA) administers and oversees programs
that prepare workers for good jobs at good wages by providing high quality job
training, employment, labor market information, and income maintenance services
through its national network of One-Stop centers. The programs within ETA
promote pathways to economic independence for individuals and families. Through
several laws, ETA is charged with administering numerous employment and
training programs designed to assist the American worker in developing the
knowledge, skills, and abilities that are sought in the 21st century's economy.
Regulatory
Review and Burden Reduction
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Equal Employment Opportunity in Apprenticeship and
Training, Amendment of Regulations: The revision of the National
Apprenticeship Act Equal Opportunity in Apprenticeship and Training (EEO)
regulations is a critical element in the Department's vision to promote and
expand registered apprenticeship opportunities in the 21st Century
while safeguarding the welfare and safety of all apprentices. In October 2008,
ETA issued a final rule updating 29 CFR part 29, the regulatory framework for
registration of apprenticeship programs and apprentices, and administration of
the National Apprenticeship System. The companion EEO regulations, 29 CFR part
30, have not been amended since 1978. ETA proposes to update part 30 EEO in
the Apprenticeship and Training regulations to ensure that they act in concert
with the 2008 revised part 29 rule. The proposed EEO regulations also will
further Secretary Solis' vision of good jobs for everyone by ensuring that
apprenticeship program sponsors develop and fully implement nondiscrimination
and affirmative action efforts that provide equal opportunity for all
applicants to apprenticeship and apprentices, regardless of race, gender,
national origin, color, religion, or disability.
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Implementation of Total Unemployment Rate Extended Benefits
Trigger and Rounding Rule: This rule will update regulations to
conform to existing law and State practice. It will benefit State Unemployment
Insurance systems by remove any potential confusion between complying with
guidance and current law.
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Elimination of several obsolete program regulations from the
Code of Federal Regulations: ETA plans to pursue four regulatory
projects that will eliminate regulations that are no longer effective or
enforceable because their underlying program authority was superseded or no
longer exists. These include the Job Training Partnership Act Removal of JTPA
(RIN 1205-AB68), Labor Certification Process for Logging Employment and
Non-H-2A Agricultural Employment (RIN 1205-AB65), Attestations by Employers
Using F-1 Students in Off-Campus Work (RIN 1205-AB66), and Attestations by
Facilities Using Nonimmigrant Aliens as Registered Nurses (RIN 1205-AB67).